drew the ire of bail reform supporters<\/a>. Among their other advocacy work, the Bail Project helps indigent defendants pay their bail \u2014 a service they no longer operate in Texas.<\/p>\n\u201cWhile Proposition 3 does open the door to increased pretrial detention \u2014 which we were opposed to fundamentally within our organization \u2014 it also does make Texas the first state in the country to adopt some historic due process safeguards,\u201d Emma Stammen, policy strategist at the Bail Project, said.<\/p>\n
Specifically, Stammen praised the amendment guaranteeing the right to a legal defense at a hearing when the option to hold the accused without bail is on the table.<\/p>\n
According to Garrett Cleveland, a public defender in the Hill Country Regional Public Defender office, many counties do not have public defenders assigned during the initial hearing when bond is set. In those cases, the public defender will be assigned between the initial appearance and the arraignment \u2014 or sometimes during the arraignment hearing itself. While the bond amount can be changed at the arraignment, Cleveland contends clients could have better outcomes if an attorney was present from the beginning.<\/p>\n
Stammen also praised the high evidentiary standard needed to have a no bond determination. To deny bail for being a willful flight risk, a judge or magistrate must use a preponderance of evidence \u2014 or more likely than not \u2014 standard. To deny bail for a threat to the community, a judge or magistrate must use a \u2018clear and convincing\u2019 evidence standard.<\/p>\n
\u201cThe impacts of how this will impact pre-trial detention rates and jail population really comes down to how it\u2019s implemented,\u201d Stammen said. \u201cI think the due process protections themselves are net positive and that they are really a step in the right direction towards creating a system that works better for everyone else. If they are actually adhered to and implemented correctly.\u201d<\/p>\n
\u2018Barely a silver lining\u2019<\/p>\n
One of the people highly skeptical of how Texas will implement this amendment is Krish Gundu, the co-founder of the Texas Jail Project.<\/p>\n
\u201cThe silver lining is barely a silver lining,\u201d she said about the due process protections. \u201cWhat is already accessible and available to people in county jails is not happening. There\u2019s a huge gap in what is mandated, what is policy and what is practice.\u201d<\/p>\n
Gundu, similar to the Bail Project, believes the state needs less pretrial detention, not more.<\/p>\n
\u201cWhen your county jail system is already the largest warehouse of mental illness in the state and jails are rapidly opening up programs like jail-based competency restoration, that should tell us something about the problem,\u201d she said. Gundu cited several instances of defendants dying in pre-trial detention under cash bails too high to post, and believes the Damon Allen Act has prevented mentally-ill defendants from getting the help they need.<\/p>\n
\u201cThe problem is that we are trying to address a public health crisis with punitive solutions,\u201d she said. \u201cWe are gonna keep digging ourselves into the hole more and more and more and if you\u2019re serious about public safety, we should be connecting people with mental illness who come in the first few times through the jail \u2014 we should be aggressively connecting them with the appropriate level of care in the community.\u201d<\/p>\n
\u2018They are presumed to be innocent\u2019<\/p>\n
Defense attorney Charlie Baird also has concerns about Proposition 3 \u2014 specifically with taking away judicial discretion. In his long career, Baird has also served as a district judge and a judge on the Criminal Court of Appeals \u2014 the highest criminal court in Texas.<\/p>\n
\u201cThis can be a very broad impact on an individual\u2019s freedom prior to trial, when they are presumed to be innocent,\u201d Baird said. \u201cUnder those circumstances, it seems like it should be very difficult to hold somebody without bail, so I\u2019m concerned about that.\u201d<\/p>\n
Baird said one of the issues with pre-trial detention is the potential to coerce defendants into false confessions.<\/p>\n
\u201cUnfortunately there are many, many cases where individuals have lost their liberty and set in jail \u2014 presumptively innocent \u2014 but bail was either denied or bail was so high it was effectively denied,\u201d Baird said. \u201cWhat happens then is it forces the individual to plead guilty in order to get out of jail to support himself and support his family and to support his dependents. I\u2019ve always thought that was a very unfair situation to put somebody in.\u201d<\/p>\n
At the same time, Baird understands the arguments about public safety.<\/p>\n
\u201cIf you have an individual who is now charged with a violent offense and then you look at his prior criminal history and his prior criminal history also indicates violent offenses, then I think it\u2019s very likely that that individual probably would be a threat to public safety,\u201d he said. \u201cTherefore, his bail should either be denied or very high.\u201d<\/p>\n
However, Baird would like to see judges have the leeway to make the best decision for the individual circumstances in each case.<\/p>\n
\u201cThere\u2019s lots of things that a judge can do in addition to just setting a dollar amount of bail,\u201d he says. \u201cWe have all kinds of electronic devices that can monitor an individual either from their location or their alcohol intake. All types of things are available to us. We can also order counseling and treatment and therapy that you cannot provide an individual while they\u2019re in jail. I think that I would like to see a judge have as much discretion as possible to impose those other conditions of bond that the judge thinks would be effective and also reduce the flight risk and provide for public safety.\u201d<\/p>\n
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